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Strum v. Palakovich

United States District Court, Eastern District of Pennsylvania

March 19, 2015




Seven years after his habeas petition was denied, Andre Strum filed a motion under Federal Rule of Civil Procedure 60(b). He seeks relief from the denial of his habeas petition filed under 28 U.S.C. § 2254 in 2005. Relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Cox v. Horn, 757 F.3d 113 (3d Cir. 2014), he contends that his case should be reopened.

Strum’s motion is untimely. Even if the motion were timely, he would not be entitled to relief because Martinez is inapplicable to his case. Therefore, we shall deny his motion.


On December 18, 1997, Strum was convicted of first-degree murder, robbery, possession of an instrument of crime and criminal conspiracy.[1] He was sentenced to life in prison on the murder count, a consecutive term of five to ten years for robbery and a concurrent term of four to eight years for the conspiracy.[2] Trial counsel filed a direct appeal.[3] The Superior Court affirmed judgment on November 29, 1999.[4] One year later, Strum filed a pro se PCRA petition.[5] Appointed counsel amended the petition to assert an ineffective assistance of counsel claim for trial counsel’s failure to object to “evidence of a gun that was not the murder weapon.”[6] The trial judge, acting as the PCRA judge, denied the petition. Strum, through newly appointed counsel, filed an appeal to the Pennsylvania Superior Court.[7] His appeal was denied.[8] The Pennsylvania Supreme Court then denied his petition for allowance of appeal on September 14, 2005.[9]

Strum filed a pro se petition for a writ of habeas corpus on September 21, 2005.[10] In his initial petition, he contended that trial counsel was ineffective because he failed to object to testimony about a gun seized during petitioner’s arrest. In July, 2006, he amended the petition to add two more ineffective assistance claims. He claimed his trial counsel failed to request a limiting jury instruction on the “inadmissibility” of the gun testimony and prevented him from testifying on his own behalf.[11]

Magistrate Judge Angell recommended the petition be denied without an evidentiary hearing.[12] She concluded that there was no merit to Strum’s first claim.[13]She determined that the remaining claims were procedurally defaulted.[14] Nevertheless, she concluded that the second claim was also meritless.[15] Her Report and Recommendation was approved and adopted. The petition for writ of habeas corpus was dismissed.[16] On October 4, 2007, the Third Circuit denied a certificate of appealability.[17]

Now, pursuant to Rule 60(b)(6), Strum seeks relief from the Order denying his habeas petition. He contends that his PCRA counsel failed to raise all ineffective assistance claims.[18] He seeks reconsideration of the procedurally defaulted claims that PRCA counsel was ineffective in failing to raise trial counsel’s ineffectiveness for failing to request a cautionary instruction concerning testimony about the gun, and for “failing to permit petitioner to testify on his own behalf.”[19]


Of the six available grounds for relief from a judgment afforded by Rule 60(b), Strum relies upon Rule 60(b)(6), the catch-all provision that allows a district court to vacate a prior judgment for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6); Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008). However, relief under Rule 60(b)(6) is granted only in “extraordinary, and special circumstances.” Green v. White, 319 F.3d 560, 563 n. 1 (3d Cir. 2003). Such extraordinary circumstances “rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535. A change in the law, by itself, seldom amounts to an extraordinary circumstance justifying Rule 60(b)(6) relief. Reform Party of Allegheny Cnty. V. Allegheny Cnty Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (en banc).

Strum’s motion is untimely because it was not brought within a reasonable time. There is no specific time limit for filing a motion pursuant to Rule 60(b)(6). But, it must be filed within a “reasonable time.” Fed.R.Civ.P. 60(c)(1); Moolenaar v. Gov’t of Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987) (citing Fed.R.Civ.P. 60(b)).

Strum provides no reason, much less a compelling one, for raising his new ineffectiveness claims seven years after his petition was denied and more than two years after Martinez was decided. Such a lengthy period of time is not reasonable for purposes of a Rule 60(b) motion. See Moolenaar, 822 F.2d at 1348 (finding rule 60(b)(6) motion brought almost two years after order at issue was untimely); United States v. Real Property Located at 1323 South 10th Street, Philadelphia, PA, No. 91-5848, 1998 WL 470161, at *2 (E.D. Pa. Aug. 11, 1998) (concluding that four-year delay between order and Rule 60(b)(6) motion was unreasonable.).

Strum’s motion is completely silent on the reason for this delay. Nor are we are able to discern any facts to support an inference that the delay was justified. Hence, we conclude that his Rule 60(b)(6) motion is untimely.

Even if Strum’s petition were timely, he has not demonstrated “extraordinary circumstances” warranting relief under Rule 60(b)(6). Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). Strum’s reliance on Martinez as an ...

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